Krishi Evem Prodyogiki Vishwa. Vs. United Trades Congress & Anr.  Insc
1273 (13 December 2007)
Sinha & Harjit Singh Bedi
out of SLP (Civil) No. 4677 of 2007] S.B. SINHA, J :
This appeal is directed against the judgment and order dated 7.03.2006 passed
by a learned Single Judge of the Allahabad High Court dismissing the writ
petition filed by the appellant from an award dated 30.05.1998 passed by the
Presiding Officer, Industrial Tribunal (3) U.P. Kanpur.
Appellant is a University created under the Uttar Pradesh (Krishi Evam Prodyogik
Vishwavidyalaya Adhiniyam) Act, 1958 (for short the Act). The service
conditions of the employees of the University are governed thereby as also by
the statute framed thereunder. Its basic object was to undertake various
training and projects for the betterment of agriculture. For the said purpose,
it employs persons from time to time; sometimes project-wise.
Admittedly, Respondent No. 2 herein was appointed on daily-wages by the
University on 1.07.1980. He was being paid wages on a daily basis.
worked as a Laboratory Assistant cum Attendant which is a Class IV post. The
job of Assistant Clerk, however, was being taken from him on and from
1.11.1991. His remuneration was being paid at the rate of Rs. 40/- per day.
Respondent No. 1 which is a trade union, raised an industrial dispute on behalf
of the respondent No. 2 on the premise that his services had not been
regularized by the University. Pursuant thereto, a reference was made by the
appropriate Government which reads as under:
the employer by not declaring the employment of its employee Kalyan Sharan, S/o
Shiv Dutt working as a clerk permanent did commit illegality? If yes whether
the concerned employee is the rightful claimant to the benefits (reliefs) and
from which date and with what reason?
Presiding Officer, Industrial Tribunal (3), UP, to whom the said reference was
made, inter alia having regard to an order passed by the High Court on a
concession made by the learned counsel for the University in a writ petition
filed by other employees of the University, by an award dated 30.05.1998
it is being completely proved that the employer has been taking work from the
concerned worker from 1.11.91 continuously as a Clerk however he is being paid
salary on a daily wage basis as a daily wage employee which is highly
unfortunate, improper and illegal and the concerned worker as per the nature of
his work is rightly entitled to be made permanent and regularized in the post
of Clerk/ typist keeping in view the nature of the work which he is doing now.
having considered the written statements, counter replies, documents, and
deposition of witnesses and after hearing the arguments of both the sides I
have come to the conclusion finally that the employer of the concerned worker Kalyan
Sharan S/o Shiv Dutt, post Clerk having not declared the concerned worker as
regularized and permanent is an illegality and is wrong. Thus, it is my
decision in this dispute is that the employer while declaring the concerned
worker permanent should extend him all the benefits due to him from the day of
Validity of the said award was questioned by the appellant before the Allahabad
High Court which by reason of the impugned judgment has been dismissed by a
learned Single Judge of the Court, holding:
perusal of the judgment passed by the Labour Court it is clear that the Labour Court has considered each and every aspect and has come to the
conclusion that in spite of the fact that respondent workman is working from
1980 and is being treated as daily wager, this clearly amounts to unfair labour
practice. The finding recorded by the Labour Court is a finding of fact in view
of the judgment reported in 2005 (3) SCC 193, Management of Madurakantam
Cooperative Sugar has clearly held that there is very little scope of
interference in the finding recorded by the Labour Court. The finding recorded
by the Labour Court is a finding of fact and unless and until it is proved
beyond doubt that the Labour Court has exceeded its jurisdiction and the
finding recorded by the Labour Court is against the evidence on record and is
perverse then the High Court while exercising the jurisdiction under Article
226 of the Constitution of India has the jurisdiction to interfere otherwise
there is very little scope for interference.
R.G. Padia, learned senior counsel appearing on behalf of the appellant, in
support of this appeal, would submit that the impugned award as also the
judgment and the order of the High Court are wholly unsustainable inasmuch as :
The appointment of the respondent No. 2 having been made dehors the
statutory rules, no direction for regularization could have been issued.
The Industrial Tribunal could not direct regularization of a Class III
employee, particularly, when the respondent No. 2 had not worked for a long
time in the said post.
The Industrial Court cannot grant a declaratory decree.
S. Chandra Shekhar, learned counsel appearing on behalf of the respondents, on
the other hand, would submit:
Respondent No. 2 having been working against a permanent vacancy both as a
Laboratory Assistant which is a Class IV post and as an Assistant Clerk which
is a Class III post for a long time, the Industrial Court acted within its jurisdiction in passing the impugned
As pursuant to the order passed by the High Court in another writ petition, the
services of those who were junior to the respondent No. 2 were regularized, he
was also entitled to a similar benefit.
Concededly, Appellant is a University constituted by a statute. Who would be
the officers and authorities of the University is specified in Section 8 of the
Act. The competent authority of the University has made Statutes in
terms of the provisions of the Act. The matter relating to appointment of staff
is governed by Chapter XIII of the Statutes framed by the University, providing
that all appointments shall be made strictly on the basis of merit.
the purpose of appointing different categories of employees, provisions have
been made for constitution of selection committees.
10 reads as under:
Appointments of all other staff not specifically provided for in the Act of
these Statutes shall be made by the Kulpati with the approval of the Board
except the following posts which may be filed by the Kulpati without reference
to the Board namely;
The non-teaching posts carrying a scale the maximum of which does not exceed Rs.
450/- including those which are filled by obtaining services of a person on
deputation for a period upto three years from a regularly constituted service
of State or Central Government or an autonomous body constituted by the State
or Central Government. The upper limit of Rs. 450/- will be subject to
alteration from time to time, by the resolutions of the Board of management, on
the basis of rationalization or enhancement occurring on the basis of the
decision of the Government.
The posts for which the Kulpati is the appointing authority under the
provisions of the Act.
The University Statute does not provide for appointment on daily- wages or on
an adhoc basis. Respondent No. 2 in his written statement filed before the Industrial Court did not make any averment that he
had been appointed in terms of the provisions of the statute or prior thereto
any advertisement therefor was made. According to him, he being a hard working,
honest, efficient and eligible employee, was entrusted with the work
of a Clerk from 1.11.1991. In his written statement, it was averred:
That though the worker was working against a permanent vacant post as a clerk
in a permanent manner, however, the employer is not giving him the actual scale
of pay and other allowances and benefits as that of a permanent clerk. However,
he is still considered as a daily wager inspite of having worked since last 14
years continuously, which is illegal and wrong.
feeble attempt, however, was made by the learned counsel appearing on behalf of
Respondent No. 2 to state that he had been appointed against a permanent
vacancy. In his written statement, he did not raise any such contention. It
does not also appear from the records that any offer of appointment was given
to him. It is inconceivable that an employee appointed on a regular basis would
not be given an offer of appointment or shall not be placed on a scale of pay.
We, therefore, have no hesitation in proceeding on the premise that Respondent
No. 2 was appointed on daily- wages. The Industrial Court in passing the impugned award proceeded on the premise that
Respondent No. 2 had been working for more than 240 days continuously from the
date of his engagement. It is now trite that the same by itself does not confer
any right upon a workman to be regularized in service. Working for more than
240 days in a year was relevant only for the purpose of application of Section
6N of the U.P. Industrial Disputes Act, 1947 providing for conditions precedent
to retrench the workmen. It does not speak of acquisition of a right by the
workman to be regularized in service.
Executive Engineer, ZP Engg. Divn. And Another v. Digambara Rao and Others
[(2004) 8 SCC 262], it was held:
may not be out of place to mention that completion of 240 days of continuous
service in a year may not by itself be a ground for directing an order of regularisation.
It is also not the case of the respondents that they were appointed in
accordance with the extant rules. No direction for regularisation of their
services, therefore, could be issued.
also Madhyamik Shiksha Parishad, U.P. v. Anil Kumar Mishra and Others, (2005) 5
SCC 122 and State of U.P. v. Neeraj Awasthi and Others,
(2006) 1 SCC 667]
similar question came up for consideration in a large number of decisions
before this Court. We will, however, refer only to some of them.
In A. Umarani
v. Registrar, Cooperative Societies and Others [(2004) 7 SCC 112], this Court
Regularisation, in our considered opinion, is not and cannot be the mode of
recruitment by any State within the meaning of Article 12 of the
Constitution of India or any body or authority governed by a statutory Act or
the Rules framed thereunder. It is also now well settled that an appointment made
in violation of the mandatory provisions of the statute and in particular,
ignoring the minimum educational qualification and other essential
qualification would be wholly illegal.
illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma)
is equally well settled that those who come by back door should go through that
door. (See State of U.P. v. U.P. State Law Officers Assn.)
furthermore cannot give permanence to an employee whose services are ad hoc in
nature. A Constitution Bench of this Court in Secretary, State of
Karnataka and Others v. Umadevi (3) and Others [(2006) 4 SCC 1] clearly held
that an appointment dehors the statutory rules would render the
appointment a nullity, stating:
Without keeping the above distinction in mind and without discussion of the law
on the question or the effect of the directions on the constitutional scheme of
appointment, this Court in Daily Rated Casual Labour v. Union of India directed
the Government to frame a scheme for absorption of daily-rated casual labourers
continuously working in the Posts and Telegraphs Department for more than one
year. This Court seems to have been swayed by the idea that India is a socialist republic and that
implied the existence of certain important obligations which the State had to
it might be one thing to say that the daily- rated workers, doing the identical
work, had to be paid the wages that were being paid to those who are regularly
appointed and are doing the same work, it would be quite a different thing to
say that a socialist republic and its executive, is bound to give permanence to
all those who are employed as casual labourers or temporary hands and that too
without a process of selection or without following the mandate of the
Constitution and the laws made thereunder concerning public employment. The
same approach was made in Bhagwati Prasad v. Delhi State Mineral Development Corpn.
where this Court directed regularisation of daily-rated workers in phases and
in accordance with seniority.
With respect, it appears to us that the question whether the jettisoning of the
constitutional scheme of appointment can be approved, was not considered or
decided. The distinction emphasised in R.N. Nanjundappa v. T. Thimmiah was also
not kept in mind. The Court appears to have been dealing with a scheme for
equal pay for equal work and in the process, without an actual
discussion of the question, had approved a scheme put forward by the State,
prepared obviously at the direction of the Court, to order permanent absorption
of such daily-rated workers. With respect to the learned judges, the decision
cannot be said to lay down any law, that all those engaged on daily wages, casually,
temporarily, or when no sanctioned post or vacancy existed and without
following the rules of selection, should be absorbed or made permanent though
not at a stretch, but gradually. If that were the ratio, with respect, we have
to disagree with it. It was further held that no person who was
temporarily or casually employed could be directed to be continued permanently.
It was also opined that by doing so it would be creating another mode of public
employment which is not permissible in law. [See also Punjab Water Supply &
Sewerage Board v. Ranjodh Singh and Others, (2007) 2 SCC 491]
The High Court has relied upon a decision of this Court in Mahendra L. Jain and
Others v. Indore Development Authority and Others [(2005) 1 SCC 639]. Therein
it is stated:
The question, therefore, which arises for consideration is as to whether they
could lay a valid claim for regularisation of their services. The answer
thereto must be rendered in the negative.
cannot be claimed as a matter of right. An illegal appointment cannot be legalised
by taking recourse to regularisation. What can be regularised is an
irregularity and not an illegality.
constitutional scheme which the country has adopted does not contemplate any
back-door appointment. A State before offering public service to a person must
comply with the constitutional requirements of Articles 14 and 16 of the
Constitution. All actions of the State must conform to the constitutional
requirements. A daily-wager in the absence of a statutory provision in this
behalf would not be entitled to regularisation. [See also M.P. Housing
Board and Another v. Manoj Shrivastava (2006) 2 SCC 702, M.P. State Agro
Industries Development Corpn. Ltd. and Another v. S.C. Pandey (2006) 2 SCC 716,
Indian Drugs & Phrmaceuticals Ltd. v. Workmen, Indian Drugs &
Pharmaceuticals Ltd. (2007) 1 SCC 408 and Gangadhar Pillai v. Siemens Ltd.
(2007) 1 SCC 533].
The Industrial Court, therefore, in our opinion, committed a serious error in
passing the impugned award. The High Court unfortunately did not pose unto
itself a right question. It referred to a large number of decisions.
most of the decisions referred to by the High Court should have been applied
for upholding the contention of the appellant herein, without any deliberation
thereupon, the learned Judge has proceeded to determine the question posed
before it on a wholly wrong premise. As noticed hereinbefore, it relied upon Mahendra
L. Jain (supra) which in no manner assists Respondent No. 2.
was necessary to be considered was the nature of work undertaken by the
University. It undertakes projects. For the said purpose, it may have to employ
a large number of persons. Their services had to be temporary in nature. Even
for that the provisions of Articles 14 and 16 are required to be complied with.
In the event, the constitutional and statutory requirements are not complied with,
the contract of employment would be rendered illegal.
Services of Respondent No. 2 were not terminated. He has been continuing to
serve the University. We have noticed hereinbefore that in a writ petition
filed by other employees on a concession made by the counsel for the
University, a purported scheme dated 24.04.2000 has been formulated. Dr. Padia
in that view of the matter stated before us that despite the legal position, as
noticed hereinbefore, in the event the case of Respondent No. 2 comes within
the purview of the said Scheme, his services shall be regularized when his turn
place on record the aforementioned statement made by Dr. Padia that as and when
Respondent No. 2 becomes entitled to be considered for being absorbed in the
services of the University pursuant to the said scheme, his case may be
considered. If his turn for consideration for regularization has already come,
a decision thereupon shall be taken as expeditiously as possible.
The impugned judgment is set aside. The appeal is allowed with the
aforementioned observations and directions. However, in the facts and circumstances
of this case, there shall be no order as to costs.